The Law Commission of Ontario (LCO) has undertaken a project to review Ontario’s statutory framework related to legal capacity, decision-making and guardianship, with a view to developing recommendations for reform to law, policy and practice in this area. This project has its roots in two of the LCO’s completed projects: the Framework for the Law as It Affects Older Adults and the Framework for the Law as It Affects Persons with Disabilities. During the course of those projects, the LCO heard considerable concern about how the laws in this area were operating in practice, and their impact on the autonomy, security, dignity and inclusion of older adults and persons with disabilities.
This project will focus on the core statutory framework of the Substitute Decisions Act (SDA) and Health Care Consent Act (HCCA), as well as the provisions of Part III of the Mental Health Act (MHA) related to assessment of legal capacity to manage property. It will not address the common-law, other statutes that touch upon consent and capacity issues, or the broader provisions of the MHA. Within this scope, the project will concentrate on the following broad issues:
- The standard for capacity, including tests for capacity and the various avenues and mechanisms for assessing capacity under the SDA, HCCA and MHA;
- Decision-making models, including an examination of the desirability and practical implications of alternatives to substitute decision-making, including supported and co-decision-making;
- Processes for appointments (for example of substitute decision-makers), whether through personal appointments or a public process, with a focus on appropriate use and on improving efficiency and accessibility;
- The roles and responsibilities of guardians and other substitute decision-makers, including potential for more limited forms of guardianship and consideration of options for those who do not have family or friends to assist them;
- Monitoring, accountability and prevention of abuse for substitute decision-makers or supporters, however appointed, and of misuse by third party service providers, including mechanisms for increasing transparency, identifying potential abuse and ensuring compliance with the requirements of the law; and
- Dispute resolution, including reforms to increase the accessibility, effectiveness and efficiency of current mechanisms.
In evaluating the current law and developing recommendations, the LCO will apply the Frameworks it has developed for the law as it affects persons with disabilities and older adults, as well as taking into account developments in international law, experiences in other jurisdictions, and concerns about practicality and implementability.
The Discussion Paper is based on the research and public consultations that the LCO has completed to-date, including a series of commissioned papers. It synthesizes information gathered to this point, identifies key issues and sets out potential directions for reform. It is intended as a foundation for public consultation and discussion of the issues identified. It is accompanied by a Summary of Consultation Issues intended to support the consultation process. Following the completion of public consultations, the LCO will release an Interim Report, containing analysis and draft recommendations.
PART ONE: REFORMING ONTARIO’S LEGAL CAPACITY, DECISION-MAKING AND GUARDIANSHIP LAW
I. BACKGROUND AND CONTEXTS IN WHICH THE LAW OPERATES
This Chapter sets out some of the background and contextual information that is helpful in understanding the operation of Ontario’s laws related to legal capacity, decision-making and guardianship.
Making decisions is an important part of our personal growth, as well as an expression of our values and identity. At this personal level, decision-making is connected to our autonomy, dignity, security and other fundamental values. Decision-making also has a public aspect, in that when others are being asked to rely on or implement our decisions, it is important for them to be sure that they understand the decision that has been made, that they can rely on the finality of that decision, and that all parties can be held to account to uphold their part of the decision. In this way, decision-making is also connected with the objectives of clarity, certainty and accountability. It is also important to understand decision-making as not only an outcome, but a process. A “good” decision-making process is often seen as having a value in itself, quite apart from the merits of the outcome.
The key elements of Ontario’s approach to legal capacity, decision-making and guardianship may be described as the presumption of capacity; a cognitive and decision-specific approach to the assessment of capacity; a tendency towards professionalized assessment of capacity; a substitute decision-making approach where a formalized approach to decision-making is required; a focus on the provision of procedural rights; and a preference for private relationships when individuals require assistance in decision-making.
While neither the HCCA nor the SDA refers to any particular class of persons, it is clear that some classes of persons will be more likely to be found legally “incapable” under one of these statutes. Persons with intellectual, developmental, mental health or cognitive disabilities are both more likely to be found to be legally incapable to make specific decisions within the definitions of these statutes and to be informally assumed to be incapable and therefore subject to assessments and other provisions of the statutes. In understanding the impact of these laws, it is important to consider the particular circumstances and needs of these groups, and to understand that while persons with disabilities will have in common the experience of attitudinal, systemic and other barriers to equality, their experiences may differ significantly in many ways. That is, the way in which an older person with dementia encounters the law and the needs he or she brings to it may be considerably different from those of a young person with an intellectual disability or of a person who acquires a brain injury or develops a mental health disability in mid-life, and this will significantly shape the law reform needs that are identified.
Laws in this area must understood in their larger context, including the complexities of family dynamics; the challenges raised by shortages in resources available to older adults and persons with disabilities and their families; problematic attitudes towards persons with disabilities and older adults; and the ethical issues raised for service providers and families in their relationships with individuals who may be at risk for exploitation or abuse or who may have difficulty in speaking or advocating for themselves. Inevitably, these laws are partial responses to complex practical, ethical and social issues.
Ontario’s laws in this area are the result of a comprehensive law reform effort in the late 1980s and early 1990s, including the Advisory Committee on Substitute Decision-making, the Enquiry on Mental Competency and the Review of Advocacy for Vulnerable Adults. As a result, Ontario has a modern, comprehensive and relatively coordinated legislative scheme. It is important to note, however, that the SDA and the Consent to Treatment Act (the predecessor to the HCCA) were developed in the context of the Advocacy Act, which created an ambitious institutional framework for advocacy for vulnerable individuals, but which was repealed late in the development of the legislative framework.
Pressures for reform in this area arise from a number of recent developments, including demographic shifts that are resulting in an increasing prevalence of dementia and other cognitive disabilities that may affect decision-making abilities; profound shifts in attitudes towards aging and disability; international developments such as the creation of the Convention on the Rights of Persons with Disabilities (CRPD); and acute pressures on resources at all levels. As well, the current statutory framework marked a profound transformation in Ontario law, and as carefully thought out as it was, there have been unanticipated consequences in some areas.
PART TWO: LEGAL CAPACITY
I. “LEGAL CAPACITY”: SETTING THE STANDARD
The concept of “capacity” is foundational to the law related to decision-making. Under both the SDA and the HCCA, where a decision must be made and an individual is found to lack the “capacity” to make that decision or that kind of decision, a substitute decision-maker (SDM) must do so in his or her place. Generally, those who are considered to have legal capacity are entitled to make decisions for themselves and are held responsible for those decisions, including decisions that others may consider reckless or unwise. On the other hand, persons who have been determined to lack legal capacity in a particular domain (or area of decision-making) or for a particular decision may lose the right to make decisions for themselves independently in that area: others will be responsible for making decisions on their behalf, and can in theory be held accountable for how those decisions are made. The implications for an individual of a determination of legal capacity are therefore momentous.
The concept of capacity is complex and contested, and has been understood in different ways at different times. It is closely related to concepts of autonomy and independence, in that it is intimately tied to the ability to make independent decisions and take responsibility for their consequences. It is also closely related to our assessments of and tolerance for not only risk but actual harm to individuals who are marginalized or disadvantaged.
Approaches to legal capacity have varied over time. The dominant current approach, which underpins Ontario’s legislative framework, is functional and cognitive. It focuses on the ability to make a specific decision or type of decision, at the time the decision is to be made, and in particular on the reasoning process involved in making decisions. This includes the abilities to understand, retain and evaluate the information relevant to the decision (including its likely consequences) and to weigh that information in the balance to reach a decision.
All of Ontario’s tests for capacity are based on the ability to “understand and appreciate” the relevant information. The HCCA and SDA create specific tests for each domain, setting out what information in particular the individual must be able to understand and appreciate. The major domains in Ontario are those for managing property, personal care, treatment, admission to a long-term care home, and creation of powers of attorney (POAs). The type of information involved in making a decision varies between subject areas; for example, the test for capacity is much more demanding for creating a POA for property than for a POA for personal care.
Any approach to capacity will result in some implementation issues. Ontario’s approach to legal capacity is subject to a number of critiques. While the test focuses on the ability to understand and appreciate the relevant information as opposed to actual understanding and appreciation, there are concerns that in practice this distinction may tend to blur. Similarly, there is a risk of the “appreciation” branch of the test collapsing into an outcomes-based approach, as in practice it may be difficult to distinguish between an inability to appreciate the consequences of a decision from an assessment of the nature and level of risk that differs from that of the person carrying out the assessment. As well, while legal capacity as it is understood in Ontario may fluctuate, so that a person who has legal capacity at one time may not have it at another, because determinations of incapacity may have long-term consequences (as with guardianship, for example), it may be difficult to ensure that substitute decision-making arrangements are only in place where they are truly necessary.
Options for improving Ontario’s cognitive test for capacity included strengthening or clarifying the wording of the statutory tests, or incorporating some of the material currently found in the Ministry of the Attorney General’s capacity assessment guidelines into the statute or regulation, or expanding their applicability to all forms of capacity assessment.
As well as these implementation challenges, Ontario’s approach to capacity is also subject to a more fundamental critique as being inconsistent with a disability-rights lens. Some have argued that any functional approach to capacity is incompatible with a disability-rights lens, in that the right to make decisions should not be restricted on the basis of diversity in capabilities associated with some types of disabilities, and that these types of distinctions are discriminatory. Others argue that the type of cognitively based test for capacity adopted in Ontario disproportionately disadvantages persons with intellectual, cognitive and psychosocial disabilities, and is improperly based on medically defined cognitive abilities (and in this sense retains many of the problematic aspects of a status-based approach). As noted above, the “understand and appreciate” test creates a threshold for who can and cannot make decisions for themselves based on cognitive abilities. Thus, although it is not a disability-based test, it will have a disproportionate effect on individuals whose disability affects their cognitive abilities, such as persons with intellectual, mental health or neurological disabilities.
Some have suggested that a test for capacity based on the individual’s “will and intent” would better reflect a disability-rights approach to capacity than the current “understand and appreciate” approach. In a “will and intent” approach, legal capacity would be based on the ability of an individual to act in such a way that at least one other person with personal knowledge of that individual is able to reasonably ascribe personal will or intentions, memory, and coherence through time, and communicative abilities to that effect. Such a shift would mark a radical departure from Ontario’s current approach. Careful thought would be required as to who would assess capacity based on such a test, and what types of procedural safeguards and supports would be appropriate. It would also have broader implications for who might act in a decision-making context, and the types of safeguards required to detect and address abuse. Such an approach also raises questions regarding individuals who do not currently have the kind of close and trusting relationships that is necessary to discern will and intent.
II. SYSTEMS FOR ASSESSING CAPACITY
While Part One, Chapter I focused on tests for legal capacity, Chapter II considers the ways in which assessments of capacity are carried out. Ontario’s system for assessing capacity is complex. Indeed, it is best understood as a set of interlocking systems. The SDA, HCCA and MHA set out five avenues for assessment:
1) examinations of capacity to manage property upon admission to or discharge from a psychiatric facility (MHA)
2) assessments of capacity to make treatment decisions (HCCA);
3) evaluations of capacity to make decisions about admission to long-term care or for personal assistance services (HCCA):
4) assessments of capacity to make decisions regarding property or personal care (SDA); and
5) assessments of capacity to make a power of attorney (SDA).
There are areas of commonality among these assessment mechanisms, but they differ from each other considerably in terms of factors such as the following:
1) who conducts the assessment;
2) the training and standards imposed on persons conducting the assessment;
3) information and supports for persons undergoing assessments;
4) documentation required for the assessment process; and
5) mechanisms and supports for challenging an assessment.
Some of these systems are relatively informal while others are quite formal and involve significant procedural protections and supports. This variance among assessment systems reflects to some degree the variations in the contexts and consequences of different assessments. However, it results in considerable complexity and confusion, raising the question of whether Ontario would benefit from greater harmonization, coordination or simplification of its various capacity assessment systems.
There are a number of challenges which all capacity assessment systems must address.
Translating the concept of capacity into practical terms: The slippery and multi-dimensional nature of the concept of capacity means that its application will always be challenging. While there will be individuals who clearly either do or do not meet the threshold, there will also be a significant number of individuals who fall within a grey zone or whose abilities require considerable care to determine. Because the consequences of a determination with respect to capacity are so significant, there is an added pressure to “get it right”. Capacity assessment mechanisms must therefore carry a heavy burden: given the stakes and the possibility of error, it is important to have a process that is transparent, fair and perceived to be fair, and open to correction. Given the risks of abuse or other negative outcomes where a person lacks capacity and requires the supports provided by legislation, it is also important that the process be reasonably timely.
Who should assess capacity? The complex and multi-faceted nature of capacity assessment naturally raises the question of what type of person should carry out assessments, and what qualifications, training and standards they should be required to maintain. Ontario’s approach to capacity assessment is heavily professionalized, reflecting a desire to ensure that the legal concept is well understood by those applying it, and that it is applied carefully, thoughtfully and accordingly to consistent standards. Indeed, one of the most common suggestions for reform to Ontario’s capacity assessment systems is to increase the level of education, training and standards for those who carry out assessments. As well, there are suggestions that complaint and oversight mechanisms for capacity assessment should be strengthened.
However, persons with disabilities have often raised concerns about the medicalization of their experiences and the resultant control over their lives by medical professionals, arguing that a social and human rights understanding of the experience of disability is more appropriate. These types of concerns may be seen to indicate the preferability of a more professionalized approach to capacity. However, persons with disabilities have often raised concerns about the medicalization of their experiences and the resultant control over their lives by medical professionals, arguing that a social and human rights understanding of the experience of disability is more appropriate.
Adequate procedural protections for those assessed: Given the potentially grave consequences of an assessment, it is important that adequate procedural protections be accorded to the person assessed. Of course, what are considered “adequate procedural protections” will vary depending on the context and potential consequences of a particular assessment. Concerns have been raised that some forms of capacity assessment lack adequate procedural protections to match the potential gravity of their outcomes, and in other cases, there are gaps or shortfalls in the implementation of existing procedural protections. One area of particular concern is improving access to information, advocacy and supports related to capacity assessment.
Ensuring flexible responses to changing levels of capacity: Since legal capacity, at least as understood from a functional cognitive approach, may vary over time, it is essential that assessment mechanisms retain considerable flexibility and accessibility so that individuals can be reassessed with reasonable ease. This may be easier said than done, as capacity assessment may be a resource-intensive process, and a balance must be struck between ensuring access to review and reassessment and preventing endless and unnecessary cycles of reassessment. While Ontario’s capacity assessment systems do contain mechanisms for re-assessment, in several cases they are potentially costly or cumbersome, or rely on the affected individual to initiate the process.
PART THREE: DECISION-MAKING
I. NEW DECISION-MAKING ARRANGEMENTS: SUPPORTERS AND CO-DECISION-MAKERS
Among the most significant issues raised in the LCO’s preliminary consultations for this project were those related to newly developing approaches to decision-making, such as supported and co-decision-making. These approaches represent a fundamental shift in approaches to the law, and have significant implications for almost every aspect of this area of the law. Advocates for these forms of decision-making would like to see one or both of them included in Ontario’s laws, whether as one option among a number, as a preferential option, or as replacing substitute decision-making altogether. These newer approaches to decision-making are closely related to the shifts in conceptions of capacity that were outlined in Part One, Chapter I, and have their basis in a social model of disability and a human rights critique of existing approaches to legal capacity, decision-making and guardianship.
This Chapter examines the basic elements of supported and co-decision-making approaches, drawing some comparisons with substitute decision-making; outlines some specific models for these forms of decision-making; and considers some implications and implementation challenges.
Central to this discussion is the CRPD, which Canada has ratified, and in particular Article 12, which explicitly addresses capacity to make decisions, including requirements for States Parties to recognize that persons with disabilities enjoy legal capacity on an equal basis with others in all aspects of life and to take appropriate measures to provide access for persons with disabilities to the supports they may require in exercising their legal capacity. There has been considerable debate as to the implications of Article 12. Canada’s Declaration and Reservation on the CRPD states that “Canada recognizes that persons with disabilities are presumed to have legal capacity on an equal basis with others in all aspects of their lives”. It declares Canada’s understanding that Article 12 permits substitute decision-making arrangements as well as those based on the provision of supports “in appropriate circumstances and in accordance with the law”, and reserves the right for Canada “to continue their use in appropriate circumstances and subject to appropriate and effective safeguards”. A recently released General Comment on Article 12 by the United Nations Committee on the Rights of Persons with Disabilities interprets Article 12 as requiring recognition of universal legal capacity and prohibiting the use of “best interests” approaches.
As supported decision-making is a relatively recent legislative innovation, there is no standard model for it, and indeed there are many differences of approach as to its appropriate and effective implementation. Limited forms of supported decision-making have been implemented in some Canadian jurisdictions, including Alberta, British Columbia, the Yukon and Manitoba.
There are a few elements common across models, however. First, supported decision-making does not require a finding of lack of capacity: in fact, the intent of a supported decision-making arrangement is to avoid any such finding or assessment. The focus of supported decision-making is not on the presence or lack of particular mental attributes, but on the supports and accommodations that can be provided to assist individuals in exercising control over decisions that affect them. Secondly, in supported decision-making arrangements, legal responsibility for the decision remains with the supported individual. The supported individuals retain control over their decisions, and those decisions are theirs, and not their supporters’. Thirdly, supported decision-making arrangements are based on consent. An imposed arrangement is antithetical to the notion of supported decision-making: these arrangements must be entered into freely in order to function. Finally, supported decision-making is based on relationships of trust and intimacy. For supported decision-making to function, any supporter must have significant personal knowledge of the individual, in order to assist her or him in understanding and consequentializing her or his values and preferences.
There are very significant differences among proponents of supported decision-making regarding for whom such arrangements are appropriate, with some taking the position that legal capacity is a basic right, and cannot be removed regardless of the circumstances, even where support must be total. Others see supported decision-making as a type of accommodation in which various types of supports are provided to enable the person at the centre to in effect make the decision themselves (with differing viewpoints as to what “making the decision” means in this context). This approach accepts that in some cases, individuals will be unable to make their own decisions, regardless of the amount of support that is provided, and that in those circumstances, practically speaking, another person must make the decision, although that decision must take into account the fundamental dignity and personhood of the individual on whose behalf it is made. That is, in some circumstances, something that resembles what we currently call substitute decision-making is inevitable, although there should be an emphasis on ensuring that this is truly a last resort.
Critiques of supported decision-making focus on concerns about clarity, certainty and accountability for third-parties who are asked to rely on decisions made through supported decision-making arrangements, risks for abuse and misuse of such arrangements, the merits of formalizing what some perceive to be an inherently informal approach to decision-making, and whether these types of arrangements are appropriate for all those currently falling under capacity and guardianship laws.
Co-decision-making has been less widely explored than supported decision-making. Currently, both Alberta and Saskatchewan provide access to some form of co-decision-making. Under such arrangements, joint decision-making between the adult and the appointed co-decision-maker is mandated, such that the individual only has capacity when the co-decision-maker provides assistance. A key concern is that co-decision-making creates an inherently unequal partnership, so that the appointed co-decision-maker may heavily influence the decision of the individual. As a result, co-decision-making arrangements might not differ all that substantially from substitute decision-making. In addition, these types of arrangements may be susceptible to abuse. As well, the complexity of these novel arrangements may lead to confusion.
II. WHO MAY ACT IN A DECISION-MAKING ROLE?
Currently, the vast majority of those acting as substitute decision-makers (SDMs) under Ontario law are family and friends of the person who requires assistance with decision-making. Trust companies may act as SDMs in some circumstances. As well, the Public Guardian and Trustee (PGT) will act as a decision-maker of last resort, and as a statutory guardian of property. The court may also appoint the PGT as temporary guardian following a “severe adverse effects” investigation.
Demographic and social trends mean that fewer individuals have family and close friends who are able and willing to act for them, and who could appropriately fill the role. As well, the responsibilities associated with acting as an SDM are significant, and many individuals would find it challenging to fill these roles well. Chapter VI reviews current law as to who may act as an SDM in Ontario, and considers some options for expanding who may act in these circumstances, as well as highlighting the need for better supports for family and friends who act in these roles. Options for expanding who may act include:
Professional fiduciaries: some jurisdictions have created a specialized licensed profession of fiduciaries, who may act under powers of attorney. Professional fiduciaries might be seen as an appealing source of substitute decision-making in two circumstances. Where individuals have no trusting relationship with an appropriate person who is willing and able to act on their behalf, professional fiduciaries might be an alternative to the PGT. As well, some might find the idea of a professional fiduciary appealing because their specialized focus gives them the opportunity to develop experience and expertise in fulfilling this role. However, without extensive regulation, there may be considerable risk in allowing professionals access to the funds or persons of individuals who may be very vulnerable due to a combination of disability and social isolation.
Volunteers: A number of jurisdictions have instituted volunteer programs through which members of the public may act for individuals who are socially isolated and do not have family or friends to assist them. In some cases, these volunteer programs are developed and supervised directly by government, while in others this role is contracted to community agencies.
Community organizations: Currently, under some informal trusteeship programs for certain types of social supports (such as the Ontario Disability Support Program payments or Canada Pension Plan payments), community organizations may receive funds on behalf of individuals and make decisions for them. An expansion of this type of role into decisions under capacity and guardianship legislation may expand options for those who are socially isolated. The LCO has heard that some community organizations are able to provide very good informal trusteeship services as part of a more holistic package of services that they provide to clients that they know well and with whom they regularly interact. However, consideration would have to be given to screening organizations for appropriateness, avoiding conflicts of interest and providing for accountability.
Personal support networks: Formalized personal support networks, such as “microboards” have been used in some Canadian jurisdictions to receive and manage certain types of funds for persons with disabilities. A microboard is a small group of committed persons who join together with a person with a disability to create a non-profit society which provide a variety of personal support services for the person, including the management of direct individualized funding to the individual.
III. APPOINTMENT AND EXIT PROCESSES FOR SUBSTITUTE DECISION-MAKING
Chapter III focusses on the process by which individuals are appointed to and removed from their roles in the decision-making process. Any form of appointments and exit process must balance a number of goals, some of which may be in tension with the others. These include accessibility, efficiency, flexibility, provision of choice to the individual, transparency and accountability, responsiveness to context, susceptibility to scrutiny and preservation of privacy.
Ontario’s law employs three means of identifying substitute decision-makers:
- Personal appointments, in which the individual independently identifies his or her SDM through a power of attorney (POA) for property or for personal care;
- Public appointments, where a court, tribunal or administrative body appoints the SDM. This takes the form of statutory or court-appointed guardianships under the SDA, and representatives appointed by the Consent and Capacity Board (CCB) under the HCCA and
- Automatic appointments under the HCCA, where SDMS are appointed through a hierarchical statutory list.
Stakeholders have identified major concerns regarding abuse of powers of attorney, particularly powers of attorney for property. The private nature of these appointments does, by its nature, tend to reduce scrutiny and increase the risk that abuse may be carried out undetected. The challenge is to balance the concerns regarding abuse with the importance of ensuring the continued accessibility of these instruments. A second major concern related to POAs is the difficulty faced by third parties in locating and validating them: as a result, these documents may be improperly applied or not applied at all.
Options for reform include those aimed at increasing understanding of the risks and responsibilities associated with these powerful instruments, for example through more stringent requirements related to their creation; or mechanisms to increase the potential for monitoring and oversight, such as registries, duties to account and monitors.
Critiques of current public appointments processes include concerns that it may be excessively employed, resulting in unnecessary guardianships, and that the processes are insufficiently flexible and accessible to ensure that individuals are able to enter and exit guardianship as appropriate.
Options for reform include those aimed at reducing the scope of powers allocated to appointees as appropriate (for example, through partial guardianships or appointments for specific decisions only); creation of time-limited guardianships and regular mandatory reviews of guardianship orders; streamlined entrance and exit processes; and additional procedural safeguards to promote thorough consideration of less restrictive alternatives to guardianship.
PART FOUR: ACCESS TO THE LAW
I. THE PROBLEM OF ABUSE AND MISUSE OF SUBSTITUTE DECISION-MAKING POWERS
Issues related to abuse and exploitation form a persistent theme in laws related to legal capacity, decision-making and guardianship, and in the debates about them. These laws have their inception, in part, in the desire to prevent abuse of persons who are at risk due to impairments in their cognitive abilities. The very nature of the impairments that result in the loss or diminishment of the “ability to understand and appreciate” and that thereby result in the appointment of SDMs, may be considered to increase the risk that unscrupulous individuals will be able to abuse these individuals without being detected or without the victims being aware of and able to exercise avenues for recourse. As well, because legal capacity, decision-making and guardianship laws give some people power over others, the laws themselves may create opportunities for abuse. Because the law and the roles of SDMs are often poorly understood, and because substitute decision-making powers are often exercised in the context of complex interdependent relationships, these powers may also be misused or misapplied, without any negative intent on the part of the SDM.
Current Ontario law includes a range of mechanisms for preventing, identifying and addressing abuse and misuse of substitute decision-making powers. However, there are considerable concerns about levels of abuse, with focus on three main areas: lack of understanding of the law by SDMs and by those falling under substitute decision-making powers; lack of effective mechanisms for monitoring and oversight of the activities of SDMs, and a lack of effective means of redress where abuse or misuse is identified.
Options for reform include increased provision of information and education for SDMs, whether voluntary or mandatory; a requirement for signed undertakings by SDMs at the time of appointment; requirements for regular proactive reporting by SDMs; creation of “Visitor” programs with powers to supervise or support SDMs; creation of a “Monitoring and Advocacy Office” or expanded supervisory responsibilities for the PGT; expanded powers for the PGT or another body to receive and investigate complaints; or provisions to limit loss of funds through abuse, such as limits on conflict transactions or expanded requirements for SDMs to post bonds or security.
II. DISPUTE RESOLUTION AND RIGHTS ENFORCEMENT
Many stakeholders find themselves in agreement with the essential approach of the current legislative regime, but are concerned that in practice, the legislation does not deliver on its promise. Some significant portion of the responsibility for that shortfall is attributed to gaps and shortcomings in the mechanisms for rights enforcement and dispute resolution. Concerns regarding dispute resolution and rights enforcement in this area must be understood in the context of other concerns in this area of the law, including shortfalls in monitoring and oversight mechanisms, the complexity of the system, and limits in information and education for all those involved in this area of the law. As well, these concerns should be understood in the context of broader concerns about access to the law in general. Those directly affected by this area of the law are often marginalized or at risk in some way, and so may face particular challenges in understanding and accessing their rights.
The Consent and Capacity Board (CCB) received strong support from stakeholders during the preliminary consultations as a generally effective and accessible forum for what may be difficult issues. However, there are ongoing questions as to whether the best balance has been struck with respect to proceduralism, adversarialism and meaningful resolution of the issues.
Concerns with the court-based processes for resolution of disputes and rights enforcement under the SDA focused on the challenges of addressing warring families who make these processes the venue for bitter disputes that have little to do with the well-being of the individual who is supposedly at the centre, costs and other barriers to accessibility, and complexity. Options for reform include provision of additional specialized supports or services for individuals attempting to access their rights in this area, or examining the experience with tribunal systems in other jurisdictions.
III. SUPPORTS TO ACCESSING THE LAW: NAVIGATION, PROBLEM-SOLVING AND VOICE
One of the key priorities for reform identified during the LCO`s preliminary consultations was the provision of supports to enable individuals to more effectively access their rights under the law. Particular emphasis was placed on developing systems, policies or practices that would ensure that:
- individuals whose rights were potentially affected by these laws had meaningful access to information about the law, its potential impact on them, and their options for pursuing their rights;
- both individuals directly affected and those who provide them with supports receive assistance in navigating the often complex systems for capacity assessment, entering or exiting guardianship, or challenging the activities decisions or activities of SDMs;
- individuals with disabilities that affect their abilities to identify or articulate their needs and wishes receive supports and accommodations to assist them in this respect; and
- where individuals must deal with lengthy, procedurally demanding or multi-layered legal structures in order to resolve disputes or enforce their rights, that they receive the assistance necessary to ensure that they can meaningfully advocate for their rights.
These issues are addressed in this Chapter of the Discussion Paper.
There are a number of important supports and advocacy services within the current system, such as rights advisers under the MHA; “section 3 counsel” who may be appointed to provide representation to persons who are subject to proceedings related to legal capacity under the SDA and who do not have counsel; legal aid services, particularly with respect to CCB hearings; and specialty legal clinics such as the Advocacy Centre for the Elderly and ARCH Disability Law Centre. These services are valuable, but are limited in scope and fragmented. One option for reform is to examine how these support services may be strengthened or expanded.
As well, one might consider the creation of new, specialized support services, such as exist in other jurisdictions or areas of the law. Examples include the Office of the Public Advocate in the Australian state of Victoria, the Independent Mental Capacity Advocates provided in the United Kingdom to persons who have may lack legal capacity and require supports with respect to serious medical or significant accommodation decisions (such as admission to long-term care); Alberta’s Review Officers who provide services as part of the process of applications for guardianship or co-decision-making; and Ontario’s Adult Protective Services Workers who provide supports to persons with developmental disabilities though government funding of appropriate community service providers.
IV. ACCESS TO INFORMATION AND EDUCATION
One of the dominant issues throughout this Paper is the effect of the pervasive lack of knowledge and understanding of this area of the law on its meaningful and effective implementation. This affects every aspect of the law, and every group that comes into contact with it. This chapter gathers together material from throughout the Paper to provide a focused examination of this problem.
There are four groups who must understand the law in order for it to be implemented as envisioned:
- those who are directly affected (those who may or have been determined to lack legal capacity, or who are attempting to create authorizations, such as powers of attorney, to address future decision-making arrangements);
- those who act for others who have been determined to lack legal capacity: as noted above, these are mostly family and friends, but may include others;
- those who provide information, advice and support to those who interact with Ontario’s legal capacity and guardianship system, such as advocates, community agencies and social service providers; and
- those professionals who are responsible for implementing the law, such as professionals who assess capacity, obtain consent, or are responsible for ensuring compliance with the law.
Each of these groups has different information needs, and will face different opportunities and barriers in accessing information and education.
With respect to professionals and institutions, while considerable effort has been invested in assisting these groups to understand the law in this area and their obligations under it, it is generally believed that much more is needed. The law is complex, the issues are difficult and personnel regularly change over. As well, there is no central repository of information on this area of the law. For those looking for information or resources, there is no one obvious place to look. While many organizations identify information gaps based on their own experiences and attempt to fill them, there is no central mechanism for identifying needs on an ongoing basis. Further, while many organizations provide information and education, no organization has a clear and specific mandate to do so.
PART FIVE: ADVANCING EFFECTIVE LAW REFORM
I. ENSURING AN EFFECTIVE SYSTEM: COORDINATION, SYSTEM MONITORING AND TRANSPARENCY
One underlying theme running through many of the issues raised in this Paper is the decentralized nature of Ontario’s system, with multiple institutions and processes reflecting a diversity of needs, and a focus on individual action to access the system and its supports. A recurring concern throughout this initial phase of the project has been the challenge in coordinating all of the many institutions and aspects of this area of the law, and ensuring that they are working well together towards the achievement of the ultimate purposes of the law. This concern may be understood as the result of three significant and interrelated gaps in the current regime:
1) There is a pervasive lack of data, and even of the potential to gather data, relating to the effective functioning of current processes and requirements, and as a result, there is a lack of transparency and accountability for the system as a whole.
2) Ontario’s approach to this area of the law has been relatively decentralized, with a focus on the responsibilities of affected individuals, families and professionals in ensuring that the system operates effectively and as envisioned, and as a result, there is little coordination or oversight of broader system functions such as education or monitoring of SDMs.
3) As a result, it is difficult to identify flaws or implementation issues in the system as whole, and therefore to evaluate whether the law is having its intended effect.
II. PARTICIPATION IN THE LAW REFORM PROCESS: THE LCO’S PUBLIC CONSULTATIONS
The laws of legal capacity, decision-making and guardianship directly affect a large and growing number of Ontarians. Most Ontarians will at some point encounter this area of the law, whether in a professional role or through their own illness or disability, or that of a loved one. The impact of these laws on the rights and basic quality of life of those directly affected, and on the lives of their families and friends, is profound. For law reform to be effective, it is important to hear from those affected, to understand both how the law currently works in practice and how it can be improved to be more meaningful, accessible, just and effective.
The LCO encourages you to participate in its public consultations. Information about consultations and how you can contribute is found in Part Five, Chapter II.
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